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Saturday, December 3, 2016

BDSM and public lewdness in front of children. WHAT!?

Every once in awhile, we get a wing-dinger of a question. This rates right of up there! However, it does bring into question what constitutes free speech, and what constitutes lewd conduct. The question:
Let's say that you are into the BDSM scene. This fetish involves you engaging in spit play, where as a submissive you hold you head back, open your mouth and let your dominant spit a liberal amount of saliva down your throat as part of a spit fetish, and you do it outdoors in full view of women and children who don't want to see it are you guilty of indecent exposure. Or how about you perform such an act at a party at your house with women and children present are you guilty of indecent exposure?


Of course, spitting in someone's mouth may not be your cup of tea, but is it illegal? Two considerations here -- (1) what conduct falls afoul of public displays of sexuality, and (2) does doing this in front of children cause a problem?

As to the first point, probably not. While sexuality in public constitutes indecent exposure and probably disorderly conduct, spitting, while fully clothed, into another person's mouth is probably not going to cause a problem (assuming assent, of course). In DC, the code section for this is DC Code 22-1312 entitled "Lewd, Indecent, and Obscene Acts". It reads:
It is unlawful for a person, in public, to make an obscene or indecent exposure of his or her genitalia or anus, to engage in masturbation, or to engage in a sexual act as defined in § 22-3001(8). It is unlawful for a person to make an obscene or indecent sexual proposal to a minor. A person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $500, imprisoned for not more than 90 days, or both.


So what is a sexual act? Good question! The code section is clear on this, too. A sexual act must involve the touching or stimulation, even through clothing, of the sexual organs. Specifically:

DC Code 22-3001
(8) “Sexual act” means:
(A) The penetration, however slight, of the anus or vulva of another by a penis;
(B) Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or
(C) The penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
(D) The emission of semen is not required for the purposes of subparagraphs (A)-(C) of this paragraph.

(9) “Sexual contact” means the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

Although disorderly conduct laws (DC Code 22-1321) could be cited to show you were causing a disturbance in the public thoroughfare, it is doubtful this would actually be brought to trial. Likely, public spitting in each others mouths, no matter how distasteful to others this may be, will not be illegal.

However, we have a problem concerning the children. Here, the code is a little different. Any act designed to arouse a sexual gratification in a child is prohibited. Notice the subtle shift in emphasis. This is to prevent children from being exposed to pornographic videos, or being made to watch sexual acts -- even if that are not touched. The code for this can be found at DC Code 22-3010. In part, the code reads:

(a) Whoever, being at least 4 years older than a child or being in a significant relationship with a minor, (1) takes that child or minor to any place for the purpose of committing any offense set forth in §§ 22-3002 to 22-3006 and §§ 22-3008 to 22-3009.02, or (2) seduces, entices, allures, convinces, or persuades or attempts to seduce, entice, allure, convince, or persuade a child or minor to engage in a sexual act or contact shall be imprisoned for not more than 5 years or may be fined not more than the amount set forth in § 22-3571.01, or both.


Your actions of spitting into your partners mouth is arguably sexual in nature (you described it as part of your BDSM relationship). Doing so in public could well have the consequence (intended or otherwise) of causing sexual arousal or enticement to a minor who, like you, may find such domination and abject subjugation erotic. This is a problem under 22-3010.

Remove the child component, and probably the worse you could get is disorderly conduct, and even then, that would likely be dropped. Do it in front of children, and you could find yourself facing up to five years for attempt enticing a minor or child under 22-3010. Note that whether you perform in front of children in your house or in the middle of Independence Avenue, makes no difference. This crime is not location centric.

Do you have a question regarding criminal law? Give us a ring! First consult is free -- and as you can see, no topic is verboten! 703-402-2723 or admin@hanoverlawpc.com.



Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com

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